1. Field of the Invention
This invention relates to age verifiers, and in particular to method of age verification for electronic media.
2. Background of the Invention
A variety of internet web sites exist which are not appropriate for access by children. These may include gambling sites, chat rooms whose subject(s) are not appropriate for children, adult sites, etc. Many believe it is primarily the responsibility of the parent or guardian to monitor the type of web sites and television a minor is exposed to. However, it would be desirable to provide an additional mechanism to prevent minors from accessing inappropriate web sites.
A variety of age verification systems have been used, such as credit card-based membership subscriptions, age verification system (“AVS”) firewalls, and the now discredited “I'm over 18, let me in” button. Although the Child Online Protection Act (“COPA”) (at last notice declared unconstitutional on First Amendment grounds) creates a “safe harbor” under which webmasters can rely upon the AVS or credit card solution as a defense to any claim that they are providing harmful materials to minors, no court has recognized the legal validity of a simple click-through screen where the user asserts that he or she is an adult.
There are a number of problems associated with these proposed age verification mechanisms. First, while implementation of credit card or AVS screens to block material that is harmful to minors may be somewhat effective, its consequential effects do not pass constitutional muster. Initially, users may be less likely to access protected speech if they are required to provide personal information, including names, addresses and credit card numbers. The Third Circuit Court of Appeals specifically found that Web users are simply unwilling to provide personal information in order to gain access to sensitive or controversial content.
Secondly, a distinct set of constitutional concerns are presented where individuals are required to pay even small amounts of money for access to protected communications. Finally, aside from the constitutional concerns, many credit card issuers object to the use of their credit cards for age verification purposes. Thus, given the substantial lobbying power of the merchant banks, it is anticipated that any new legislation proposed by Congress will likely not include the credit card option as an acceptable method of age verification.
Despite the fact that COPA has been enjoined on multiple occasions, it is still advisable for adult webmasters to comply with the dictates of this law. First, the government has never promised that it will not attempt to retroactively prosecute those who are not in compliance, if the law is ultimately upheld by the United States Supreme Court. Secondly, it is simply the right thing to do to keep minors from accessing adult materials from a legal and moral standpoint.
Importantly, a number of states have passed laws prohibiting businesses from providing adult materials to minors, and many of these laws appear to apply to online communications. Although some such laws have been declared unconstitutional, there is no guarantee that a criminal case won't be filed against an adult webmaster that is providing adult materials to minors without any form of age verification. Furthermore, although the issue of harmful materials is completely distinct from that of obscenity, obscenity cases become much harder to defend if the government can show that the allegedly obscene materials were also available to minors.
So what is a webmaster to do? To start out with, it should be noted that the COPA law recognizes several “affirmative defenses” to prosecution for providing harmful materials to minors. COPA's affirmative defense provision reads as follows:    Defense. It is an affirmative defense to prosecution under this section that the defendant, in good faith, has restricted access by minors to material that is harmful to minors—    (A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number;    (B) by accepting a digital certificate that verifies age; or    (C) by any other reasonable measures that are feasible under available technology. [Emphasis added.]
It is the third COPA affirmative defense that forms part of the inspiration for the instant invention. Similarly, may states' laws provide a defense to this type of charge if the business uses “good faith efforts” to keep adult materials away from minors, such as placing adult magazines behind a store clerk's counter, out of reach of children, and blocking the front covers.
So what are acceptable “good faith” efforts to verify age without requiring personal identification and/or credit card payments? A solution embodied in the instant invention utilizes both the Unsworn Declarations Act, 28 U.S.C. §1746, and the Electronic Signatures Act, 15 U.S.C. § 7000, et seq., to allow the user to certify his or her date of birth and to provide that information under penalty of perjury, before gaining access to inappropriate materials.
The mechanism taught in the instant disclosure automatically checks the current date on the server, to determine if the individual user is over the minimum appropriate age on that date, based on the birth date provided under penalties of perjury. If yes, the user can gain access to the free areas of the web site, without becoming a member, paying any money, or providing credit card information. The effectiveness of the instant procedure depends on the use of the specific verified declaration language under federal law, and reference to the Electronic Signatures Act, allowing the user to provide a statement made subject to the penalties of perjury before gaining access to the site.
From a legal standpoint, this procedure is superior compared to simply clicking “I'm over 18” which has become something of a national joke in the courts, and will likely not provide an effective argument that the site has made a good faith effort to exclude minors from the free areas. Requiring the user to verify his or her birth date accomplishes a number of things. First, in the event a minor submits a false birth date to gain access to the site, such misrepresentation will constitute an act of perjury, under federal law. The courts are less sympathetic to the claims of minors who commit felonies to obtain access to adult materials. When weighing the relative equities between a webmaster attempting to exclude minors, and a minor committing perjury, it is hoped that the courts will be more sympathetic to the former.
This situation is akin to the store clerk who is provided a fake driver's license by a minor in the attempt to purchase tobacco products. However, in this case, the information is being provided under oath.
A second advantage of the instant mechanism is the fact that, other than the birth date, no identifying information is being sought from the user. Some users may wish to remain anonymous, and these users will not be significantly deterred by providing a birth date, especially when the user's corresponding address or credit card number is not also required. This solution may address the constitutional concerns noted by the Third Circuit Court of Appeal where users are required to pay or provide personal identifying information before gaining access to adult materials.